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husband and father to give up his all so as not what respondent should pay counsel for to deprive himself of a support or exhaust a futile effort to secure a divorce for the the corpus of his estate to provide an in- complainant, but what he should in equity come for his wife with whom he is not living and good conscience have to pay for obtainas her husband. We have carefully consid- ing the only relief that was awarded against ered the evidence as to the respondent's him, that is, a small increase in the allowworth and income, and, while he has consid- ance he was making to complainant and the erable city property and a good rental in- minor children, and which was the only decome from some of it, and an interest in cer- fault found against him by the decree of the tain coal lands, the evidence as to the in- trial court. True, the custody of the chilcome from the latter is in conflict and un- dren was awarded the complainant, but the certain. While he has a good rental roll, it respondent never had claimed or contended is not entirely uniform, as some of the prop- for same, and the only default found against erty is at times vacant. It is also heavily him, as above noted, was that the contribumortgaged, and carries a big interest ac- tion by him towards the support of the comcount, which, when considered with taxes, plainant and the minor children was slightand insurance, as well as the tax and insur- ly inadequate. We therefore think, and so ance on the home, we feel that the trial hold, that $750, in addition to the $250 precourt was most generous, if not lavish to viously alloweá, is as much counsel's fee as the complainant, but the witnesses were ex- should be borne by the respondent, and the amined ore tenus, and there was evidence decree of the circuit court is to this extent and inferences from which the trial court corrected and affirmed. Ex parte Eubank, could infer that respondent's net income 206 Ala. 8, 89 South. 656. exceeded his statement as to same, and [6] Counsel insist that, as the trial court we cannot therefore hold that the conclu- declined the special and primary relief sion reached by the trial court, which was sought, it had no right, under the present like unto the verdict of a jury, was so plain-pleading, to award relief that was granted ly contrary to the great weight of the evi- under the general prayer. While the relief dence as to warrant us in disturbing same. granted was not what was specifically prayThe trial court has wisely reserved the fu-ed for, it was consistent with the case made ture control of the allowance, and can modi- by the bill and proof, and could be awarded fy same upon a proper showing that it will under the general prayer. Mobile Land Co. work oppression or hardship in case of a V. Gass, 142 Ala. 520, 39 South, 229. diminution of respondent's income or The decree of the circuit court is correctchange in the condition or necessities of the ed as above indicated, and is affirmed. family. For instance, the eldest son is near- Corrected and affirmed. ly of age, and should not be included as a dependent after attaining his majority. SAYRE, GARDNER, and MILLER, JJ., Moreover, the present status may not long concur. exist, as it is to be hoped that there may be a reconciliation.

[5] The next question presented is the allowance of counsel fees to the complainant, CAGLE V. STATE. (8 Div. 570.) which was $250 pendente lite, and an additional $1,750 upon final hearing. Consider. (Supreme Court of Alabama. April 10, 1924.

Rehearing Denied May 29, 1924.) able evidence was had on both sides from practicing lawyers as to the value of the 1. Criminal law w 600(1)-Discretionary to service of the complainant's counsel, and, grant defendant continuance for absence of while we deem the allowance quite generous,

witnesses, or put prosecution on showing as it was supported by much of the evidence,

to testimony of witnesses, if present. and we would not be disposed to disturb it

It is discretionary with the trial court to had the trial court granted the primary re- of witnesses, or put prosecution on a showing

grant a continuance to defendant for absence lief sought and awarded permanent alimony. by defendant as to what the witnesses would But this is not a case of divorce and alimony testify, if present. or what respondent should pay for services rendered in an effort to procure same, but 2. Criminal law ww 1166(7)-Denial of contin. involves only what fee should be charged to

uance to defendant not erroneous, unless prej.

udicial, him for the procurement of incidental re

The denial of a continuance to defendant lief; that is, for getting a small increase in is not erroneous, unless prejudicial. the allowance from the complainant to the respondent, and which is, in a sense, tempo- 3. Jury Cm70(8)-Fact that regular jurors un.

available not sufficient ground for objection rary. The record is voluminous, and many

to list presented. facts and features have been injected into

The fact that seven regular jurymen, whose the case which had no direct bearing upon

were on the special' venire, were en. the only relief granted, and the question is, / gaged in the trial of another case, and un

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(100 So.) available for the list to be stricken from, is not Albert Cagle was convicted of murder in a good ground of objection to the list presented. the second degree, and appeals. Affirmed. 4. Homicide em 180_Exclusion of testimony as The defendant was indicted for murder in to fear of wife to stay with husband after the first degree, and interposed pleas of not homicide because of drunken condition held guilty, and not guilty by reason of insanity, not erroneous.

He was convicted of murder in the second In a prosecution for murder, the exclusion degree, and sentenced to serve 35 years in of testimony as to whether defendant's wife

the penitentiary.
was afraid to stay with him after the homicide
because of his drunken condition was not er-

The testimony tends to show that the deroneous; her state of mind not being relevant fendant and the deceased were in the road to the issues.

with two other parties, by the name of Smith

and Horton, and, while a dispute was go5. Criminal law w 490, 683(2), 1153(4)-Ex: ing on between the deceased and defendant clusion of question on redirect examination held discretionary and not reviewable.

in which the defendant charged the deceased Where defendant's expert testified on di- with taking certain liquor, and with denying rect and cross-examination that he could hard- that Horton bad searched a car for liquor ly conceive of a man drinking a certain quan- as instructed to do by the defendant, an tity of liquor, exclusion on redirect examination automobile arrived, in which there were four of question whether he did not know of in- parties by the name of Collins, Tanner, Culstances where men bad drunk such quantity pepper, and Griffin; that upon the arrival of was discretionary, and not reviewable; the the car the defendant leveled a gun on the question being leading and not rebuttal.

driver of the car and ordered him to stop, 6. Criminal law cm 1044_Objection to argu. and, after keeping the entire party under ment of counsel not followed by motion to ex his control with the gun for some time, he olude not reviewable.

shot the deceased, who died some hours Mere objection to argument of counsel not thereafter; and that, after shooting the de followed by motion to exclude from the jury ceased, he took two of the parties away with is not reviewable.

him by the use of his gun. Thereafter de 7. Homicide Am8l-Drunkenness not defense fendant left the community, and was arrested to either degree of manslaughter,

in Florida, Drunkenness may reduce the degree of the

There was evidence tending to show de homicide from murder to manslaughter, but it fendant was drinking and had been drinkis no defense as to either degree of manslaugh- ing at the time of the shooting; that he had

been drinking heavily for some time prior to

the occasion, the testimony of his wife be8. Criminal law em815(9)-Charges predicating acquittal on reasonable doubt arising out ing that he had been drinking from a quart of any part of evidence held properly re- to a half gallon of liquor a day. fused.

Requested charges 4, 5, and 28, refused to In a prosecution for murder, the refusal defendant, are as follows: of requested charges predicating an acquittal "(4) If the jury, upon considering all the evi. on a reasonable doubt of guilt "arising out of dence, have a reasonable doubt of the defendany part of the evidence,” held not erroneous. ant's guilt arising out of any part of the evi.

depce, they must find the defendant not guilty." 9. Criminal law Em789(15)-Charges require

“(5) The court charges the jury that before ing acquittal, unless evidence excluded every they can convict defendant the evidence must reasonable supposition but guilt, held prop- be so strong as to convince each juror of his erly refused.

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guilt beyond a reasonable doubt, and, if after In a prosecution for murder, the refusal considering all the evidence a single juror has of requested charges requiring acquittal of de- a reasonable doubt of defendant's guilt arisfendant, unless the evidence excluded every ing out of any part of the ence, they canreasonable supposition but that of his guilt, not convict him." was not erroneous.

“(28) It is your duty to acquit the defendant, 10. Criminal law 815(1)-Refusal of re

unless the evidence excludes every reasonable quested charge requiring acquittal, if jury supposition but that of his guilt.” reasonably reconciled innocence of defendant with any theory advanced by accused, held not

Charges 28 and 33 are the same. erroneous or prejudicial.

Proctor & Snodgrass, of Scottsboro, for Charge requiring acquittal, if jury could appellant. reasonably reconcile innocence of accused with Harwell G. Davis, Atty. Gen., and Lamar any theory advanced by him, held properly re: Field, Asst. Atty. Gen., for the State. fused as too obscure and pretermitting belief in evidence supporting theories advanced, and its refusal not prejudicial, where instructions

SOMERVILLE, J. [1, 2] It was within the given were fair, full, and comprehensive.

discretion of the trial court to grant a con

tinuance to defendant on account of the abAppeal from Circuit Court, Jackson Coun- sence of some of his witnesses, or to put the ty; W. W. Haralson, Judge.

prosecution on showing by defendant as to Ew For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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what the witnesses would testify, if present. by this court. Lambert v. State, 208 Ala. 42, It does not appear that the discretion was 93 South. 708, citing B. R. L. & P. Co. v. abused in this case, or that any injury re- Gonzalez, 183 Ala. 286, 61 South. 80, Ann. sulted to defendant, and the denial of the Cas. 19164, 543, where the cases are collectcontinuance cannot be pronounced erroneous. ed, and Sharp v, State, 193 Ala. 22, 28, 69 Sanderson v. State, 168 Ala 109, 53 South. South. 122. 109; Caldwell V. State, 203 Ala. 412, 84 Charges numbered 2, 3, 8, 16, 19, 20, 29, 37, South. 272

and 41, refused to defendant, were fully and [3] Defendant's motion for a continuance clearly covered by other given charges, or because the requisite number of jurors were by the general oral charge. not present for the impaneling of the trial [7] Refused charges 11, 12, 13, and 18 forjury is refuted by the record, which shows bid a conviction of more than manslaughter that 50 jurors were qualified and placed on in the second degree on a finding that de the list from which the jury was struck. fendant "was so drunk that he was incapable The fact that seven of the regular jurymen, of forming the purpose to do a voluntary whose names were on the special venire, act”; or that he "was too drunk to perform a were engaged in the trial of another case, voluntary act"; or that he "was so drunk and not available for the list to be stricken that he was incapable of volition, incapable from, was not a good ground of objection to of voluntarily doing anything, and incapable the list presented Talley v. State, 174 Ala. of entertaining malice,” This is not the 101, 57 South. 445.

law. Drunkenness may reduce the degree of [4] Defendant's wife testified to his habits the homicide from murder to manslaughter, of drinking to excess, and that after he shot but it is no defense as to either degree of the deceased he came home and could not manslaughter. Laws v. State, 144 Ala. 118(6), walk-being held up by his brother-and | 42 South. 40; Bell v. State, 140 Ala. 57 was wild; and that she spent the ensuing (charge 7, p. 61), 37 South. 281. These night at her father's. On the state's objec- charges were properly refused. tion, defendant's question to her, "Were you [8] Refused charges 4 and 5 were misleadafraid to stay with him?" was excluded. ing in their predicate of an acquittal on a This was not error. Her state of mind was reasonable doubt of guilt "arising out of any not relevant to any issue in the case, and part of the evidence.” 4 Michie, Dig. 461, proof of it was not a proper way to illustrate $ 559 (8). the extent of defendant's drunkenness or [9] Refused charges 28 and 33 were bad mental disturbance.

in requiring an acquittal of defendant, un[5] Dr. Bridges, testifying as an expert for less the evidence excluded "every reasonable defendant, stated on direct examination that supposition but that of (his) guilt." Smith v. he “could hardly conceive of a man drinking State, 197 Ala. 193 (15), 72 South. 316; from a quart to a half' gallon of liquor a Walters v. State (Ala. App.) 95 South, 207. day," as had been hypothesized. On cross- (101 Refused charge 40 required an acquit. examination he repeated that statement, and tal, ii the jury could "reasonably reconcile defendant's counsel, on rebuttal examination, the innocence of the defendant with any asked him if he did not know instances theory he has advanced by evidence offered where a man had drunk that much. On the in this case.” The meaning and application state's objection, this question was excluded. of this instruction is too obscure to require The matter inquired about was not in rebut- its giving to the jury. It is quite different tal, and the question was leading. Its al. from charge 16, approved in Sanford y. State, lowance was therefore discretionary with the 143 Ala. 78, 82, 85, 39 South. 370. But, if trial judge, and its exclusion is not review-we ascribe to it the meaning given it by able. Treadwell v. State, 168 Ala. 96, 53 counsel, it is clearly faulty in pretermitting South. 290; Barlow v. Hamilton, 151 Ala. any belief by the jury in the evidence sup634, 44 South. 657; Prattville, etc., Co. v. porting the respective theories advanced. In McKinney, 178 Ala. 554, 59 South. 498. any view, however, the bases for conviction Moreover, if the witness could not conceive and acquittal were so fully and clearly stated of such excessive drinking, it is very certain by the trial judge to the jury that the rethat he had never observed it.

fusal of such a charge as this could not have [6] In his argument to the jury the solic- been prejudicial. The instructions were fair, itor remarked that "there are five men laid full, and comprehensive, and all that defendin the grave in this country to one in Eng- ant could reasonably expect. land today from the assassin.” Defendant's We have considered every point presented counsel objected to the remark; the trial by the record, and find no error for réversal judge said it was permissible; and counsel of the judgment. It will therefore be af. excepted to the ruling, but made no motion firmed. to exclude the statement. The mere objec- Aflirmed. tion by counsel, not followed by a motion to exclude from the jury, presents no ques. ANDERSON, C. J., and THOMAS and tion for review on appeal, as often decided | BOULDIN, JJ., concur.

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(100 So.) On Rehearing

6. Homicide Om 309(1)-Charge on manslaugh

ter held properly refused as not excluding SOMERVILLE, J. In their original brief

malice, and as argumentative. counsel for appellant called attention to the

Charge that, if deceased struck defendant, case of Heninburg v. State, 151 Ala. 26, 43 and latter, being thus suddenly aroused, killed South. 959, as supporting the principle em- deceased, but as soon as he had time to reflect bodied in refused charges 11, 12, 13, and 18, was sorry, and tried to take deceased home and but we inadvertently overlooked its consid- have him cared for, he could be guilty of potheration in the opinion,

ing higher than first-degree manslaughter, held That case is opposed to our other cases, properly refused, as not excluding malice, and

as argumentative.
and to the uniform current of judicial opin-
ion elsewhere, and is now expressly over- 7. Criminal law Crw 829 (1)-Refusal of charges

covered by charges given not error.
ruled, as to its holding that drunkenness may
reduce the grade of a homicide from murder

Refusal of charges covered by charges
to manslaughter in the second degree. The given is not error.
case of Hill v. State, 9 Ala, App. 7, 64 South. 8. Criminal law Om814(3)-Charges as to pre-
163, which cited and followed Heninburg v. sumption from failure to offer second dying
State, supra, must also be disapproved.

declaration in evidence held properiy retused

as not supported by evidence. The application for rehearing will be over

Charges, in ruled.

homicide prosecution, that All the Justices concur.,

state's failure to offer in evidence second written dying declaration in solicitor's possession authorized presumption that statement was less favorable to state than that in evidence held properly refused as not supported by evidence of solicitor's possession thereof, knowl

edge of its existence, or even of its having been HUSCH V. STATE. (7 Div. 431.)

made. (Supreme Court of Alabama. May 15, 1924.) 9. Criminal law Om778(10)-Charges as to

presumption from failure to offer second dy1. Homicide Om 203(3)-Statement held prop Ing declaration held properly refused in view erly admitted as dying declaration.

of defendant's right to require its production. Statement by deceased, after stating that Charges as to presumption from prosecuhe was going to die, and believed it to be his tion's failure to offer second dying declaration dying statement, held properly admitted as dy- in evidence that it was less favorable to state ing declaration.

than that in evidence held properly refused, ag

defendant, by rule of court, could have re. 2. Criminal law Ow404(4)-Deceased's clothing should not be received in evidence unless quired production of statement if in solicitor's

ith

possession. It tends to shed light on material inquiry.

Clothing worn by deceased at time of kill- 10. Criminal law www778(2)-Refused charge ing should not be received in evidence unless

permitting presumption that deceased waited it tends to shed light on some material inquiry.

for defendant held purely argumentative.

In murder prosecution, refused charge that, 3. Criminal law w 404(4)-Shirt and trousers if deceased came to forks of road 30 minutes worn by deceased at time of killing admissi. before defendant, and approached and proble if penetrated by bullet.

voked difficulty with latter, jury could presume Shirt and trousers worn by deceased at time that deceased waited for defendant, held pureof killing held admissible on issue whether he ly argumentative. was facing defendant or turning to flee when second shot was fired, if bullet penetrated 11.. Criminal law fw761 (3)—Homicide 300 them.

(14)-Charge on self-defense, omitting noces.

sity for killing, and assuming existence of 4. Criminal law 1 169(1)-Admission of de peril, properly refused. ceased's belt not penetrated by bullet held Charge on self-defense, omitting apparent harmiess.

or real necessity for killing, and assuming Admission of belt word by deceased at time existence of peril, was properly refused. of killing held harmless, though not penetrated by bulet, in view of admission of shirt and 12. Homicide Om 300(12)—Charge submitting trousers thus penetrated.

self-defense properly refused as omitting con.

sideration of evidence, 5. Homicide aw 158(1)-Defendant's statement In murder prosecution, charge that self

of purpose to have "reckoning” with deceased defense was entirely with jury under law as held properly admitted.

given by court held properly refused as omitIn homicide prosecution, defendant's state- ting consideration of evidence. ment that he was at witness' house to have "reckoning" with deceased held properly admit- 13. Criminal law eww815(1)--Charge on conted, it being for jury to say whether he meant

sideration of dying declaration held propit in primary sense of word, as counting or erly refused as argument based on partial computing, or figuratively in sense of adjust

facts. ment of reward or penalty on basis of merit, in Charge that dying declaration should be Fibich sense it is commonly used as prophecy considered in light of fact that deceased was or threat of punishment.

not cross-examined, whether he told all the For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes

wada

1

100 SO.–21

facts, and that he made another statement out of court would be unfavorable to the party thereafter, held properly refused as argument in possession of it." based on selected and partial facts.

“(18) I charge you that there is in evidence

what is termed a dying declaration, The law 14. Criminal law 811(1)-Charge that dy

ing declarations must be considered with says that such statements are competent for great caution properly refused as singling the light of all the evidence, but you should

your consideration which you may consider in out particular evidence for suspicion.

consider the dying declaration in the light of Refused charge that law requires dying the fact that the deceased was not cross-exdeclarations to be considered with great cau- amined by any one, and whether or not he has tion held improper as singling out particular told all the facts, and you may also consider evidence for suspicion, and tending to mislead the further fact that he made another and jury.

separate statement, and after this one was 15. Criminal law m763, 764(21)-Credibility made, and had it reduced to writing, if you beof dying declaration should not be impeached lieve such second statement was made and reand weight impaired by instruction.

duced to writing.” Jury should be instructed that dying decla

Isbell & Scott, of Ft. Payne, for appellant. ration should be considered in light of circum

Harwell G. Davis, Atty. Gen., for the stances under which made, and given such

State. credence as entitled to in their judgment, but impeachment of its credibility and impairment of its weight are matters for argument by

SOMERVILLE, J. (1) Several witnesses counsel, and not for instruction by court. testified that the deceased stated just before

he made the written statement which was reAppeal from Circuit Court, De Kalb Coun- ceived in evidence as his dying declaration ty; W. W. Haralson, Judge.

that he was going to die, and the declara

tion itself was prefaced by the statement James Husch, alias, etc., was convicted of that he believed it to be his dying statement. murder in the first degree, and appeals. Af. On this predicate the statement was properly firmed.

admitted as a dying declaration. 14 Michie's These requested charges were refused to Digest, 114, § 182. the defendant:

[2] The trial court admitted in evidence, “(3) I charge you that if you believe from over defendant's objection, the shirt, trouthe evidence that Black struck Husch on the sers, and belt worn by deceased at the tine head with a rock and knocked him back against he was killed. Such articles should never his buggy, and that Husch, being thus suddenly be offered or received in evidence unless they aroused, killed Black by shooting him, but as "have some tendency to shed some light upsoon as he had time to reflect was sorry for

material inquiry." Rollings v. his act, and tried to take Black home and have State, 160 Ala. 82, 86, 49 South. 329; Pearhim cared for, then he could be guilty of noth- son's Case, 97 Ala. 219, 12 South. 176; A. ing higher than manslaughter in the first de- G. S. R. R. Co. v. Bell, 200 Ala. 562, 76 gree.”

“(8) I charge you that if you believe from South. 920. the evidence in this case that Black made a dy- [3] There was a controversy in this case ing statement at the hospital after making the as to the position of the deceased when deone in evidence, then you have a right to pre- fendant fired the second shot-that is, sume that it was less favorable to the state whether he was facing defendant, or had than the one produced in evidence. “(9) I charge you that, where a party has in penetrated the clothing of deceased, and so

turned to flee. Necessarily.the lethal bullet its possession certain testimony, such as a dying declaration of a man now deceased, and far as the record shows it may have passed which statement it would be allowed to use it through both shirt and trousers. it is desired to do so, then the failure to pro- these garments were properly admitted in duce such statement or evidence is open for evidence. Terry V. State, 203 Ala. 99, 82 your consideration, and you are entitled to pre-South. 113, and cases cited supra. sume that if the statement were produced it [4] It may be that there was no justificawould be less favorable to the state than the tion for the introduction of the belt, but in one it did produce.

**(10) I charge you that, if you believe from any case it could do no harm when viewed the evidence in this case that Black came to

in connection with the other clothing, and the forks of the road 30 minutes before Husch can furnish no ground for a reversal of the did, and that he approached Husch and pro

judgment. voked a difficulty with him, then you would be [5] The homicide was committed in Auentitled to presume that Black waited at the gust, and the state was allowed to show that forks of the road for Husch.

one night in the preceding May defendan: "(11) It is tbe law that, where one party to a went to the witness' house and said he was quit is in possession of evidence which is com- down there “to have a reckoning with Black petent and material to the issues being tried, [the deceased).” It is insisted for defendant then it is the duty of the party thus in posses that this language does not import a threat, sion of such evidence to produce it in court, and if it fails to do so then the jury are en

and was not admissible as such. The prititled to presume that the evidence thus kept | mary meaning of “reckoning" is a counting

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on

some

If so,

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